Rebecca MacKinnon's postings about work, reading, and ideas from 2004-2011.

October 19, 2007

What did Yahoo! know and when did they know it?

In late July, the Dui Hua Foundation posted and translated the original 2004 Chinese police order asking Yahoo! Beijing for Shi Tao's e-mail account information, in what the police specified was part of a case of suspected "illegal provision of state secrets to foreign entities." (They've taken the original PDF down for some reason, but I've uploaded it again here. UPDATE: It's working fine now from the original Dui Hua site here.)

This document (which Dui Hua said they had examined and found to be authentic) raises some serious questions about the statement made by Yahoo! General Counsel Michael Callahan in which he said: " When Yahoo! China in Beijing was required to provide information about the user, who we later learned was Shi Tao, we had no information about the nature of the investigation."

Clearly the police document proves that Callahan's statement is not 100% true. In August U.S. congressman Tom Lantos ordered an investigation of the situation. This week he concluded "Our committee has established that Yahoo provided false information to Congress in early 2006." Callahan and Yahoo! CEO Jerry Yang have now been summoned to a hearing on November 6th to explain themselves.

Yet Yahoo! is insisting they did not lie - or at least didn't mean to if you read the lines in their latest statement: "As the Committee well knows from repeated meetings and conversations, Yahoo representatives were truthful with the Committee. This issue revolves around a genuine disagreement with the Committee over the information provided." John Palfrey at Harvard Law School's Berkman Center has the full text of that statement here. JP then writes:

Unless there are facts that I’m missing, for the Congress to call Yahoo! back to Capitol Hill to correct the record, in public, is completely appropriate, if “no information” is not what we were meant to understand. It may well be that what the company knew was in fact so vague, as many legal terms are in China, as to be inclusive. It may well be that someone in the company knew, but the right people didn’t know — and that an internal process was flawed in this case. But those are very different discussions, ones we should have, than the straight-up problem that the company didn’t have context for the request.

One thing I don't understand is why Yahoo! isn't a bit more forthright in acknowledging that Callahan's statement and the Chinese police request don't completely add up, and that this inconsistency raises legitimate questions about what Yahoo! knew and when they knew it. Maybe their failure to address this has to do with the fact that they are also in the process of trying to get a lawsuit against them by Shi Tao's mother and others dismissed.

Talking about this case to people who have spent a while working in the Internet industry in China, many think it's quite possible that communications between the local Beijing office and Yahoo headquarters in 2004 were, shall we say, sub-optimal in detail going across languages and cultures, and/or that record-keeping was disorganized enough, that Yahoo!'s U.S. legal team preparing Callahan's testimony in 2006 didn't realize that the police orders for information on email accounts for Shi Tao, Wang Xiaoning and possibly others actually did include some information about the nature of the case. It would seem pretty unintelligent to write Callahan's testimony the way it was written if one knew about those police documents, and knowing that documents have a way of getting leaked by human rights organizations - especially given that the leaking of Shi Tao's sentencing document was the reason why anybody knows about Yahoo!'s complicity in Shi's case in the first place.

It's pretty rare for a company to say in public: "sorry, we messed up." And explain how. The legal risks of doing so are non-trivial. But maybe that's their best option at this point if they don't want to be accused of lying? Assuming they weren't?